Hockman, K. v. Hursh, S. ( 2021 )

J-A01011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KENNETH HOCKMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARON L. HURSH AND THE :
IRREVOCABLE TRUST AGREEMENT :
OF FRED W. WRIGLEY, JR. : No. 1293 EDA 2020
:
Appellants :
Appeal from the Amended Judgment Entered August 4, 2020
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. 2017-04713
KENNETH HOCKMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARON L. HURSH AND THE :
IRREVOCABLE TRUST AGREEMENT :
OF FRED W. WRIGLEY, JR. : No. 1589 EDA 2020
:
Appellants :
Appeal from the Amended Judgment Entered August 4, 2020
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. 2017-04713
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 5, 2021
Sharon L. Hursh (“Hursh”) and the Irrevocable Trust Agreement of Fred
W. Wrigley, Jr. (“Wrigley Trust”) (collectively “Appellants”) appeal from the
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* Retired Senior Judge assigned to the Superior Court.
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amended judgment entered on August 4, 2020, in favor of Appellee, Kenneth
Hockman (“Hockman”), after a non-jury trial in Hockman’s action to quiet
title.1 After careful review, at docket number 1293 EDA 2020, we affirm. We
quash Appellants’ appeal at docket number 1589 EDA 2020 as duplicative.
The trial court provided the following factual history of this case in its
Pa.R.A.P. 1925(a) opinion:
[Hockman] … owns and resides on the property located at 2015
N. Ridge Road, Perkasie, PA 18944 (the “Hockman Property”).
[Appellants] are … Hursh … and the … Wrigley [Trust]. The “Hursh
Property” is located at 2025 N[.] Ridge Road, Perkasie[,] PA
18944. Hursh lives at the Hursh Property[,] and her husband Fred
Wrigley (“Wrigley”) lived on the property with her until his death
in May 2013. There is a garage on the Hockman Property that
encroaches nine (9) feet onto the Hursh Property[,] and there is
a parcel of grass next to the garage that also encroaches on the
Hursh Property (collectively, “Disputed Property”). The parcel of
grass that is part of the Disputed Property is the grassy area that
is in line with the back wall of the garage, which encroaches nine
(9) feet on the Hursh Property. The Disputed Property covers a
9[-]foot by 200[-]foot area, totaling 1,800 square feet. In 1982,
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1 Appellants purport to appeal from the June 22, 2020 order denying their
motion for post-trial relief; however, an appeal properly lies from the entry of
judgment, not from the order denying post-trial motions. See generally
Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa.
Super. 1995) (en banc). Although Appellants’ notice of appeal at docket
number 1293 EDA 2020 was filed prematurely in the instant matter,
judgments were subsequently entered to conform to the trial court’s January
31, 2020 decision. A final judgment entered during the pendency of an appeal
is sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and
Supply Co., 787 A.2d 1050 (Pa. Super. 2001). See also Pa.R.A.P. 905(a)(5)
(stating that a notice of appeal filed after a court’s determination but before
the entry of an appealable order/judgment shall be treated as if it was filed
after the entry of the appealable order/judgment and on the date of entry).
We have adjusted the caption accordingly.
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Paul Weber, the prior owner of the Hockman Property, built the
garage with permits from East Rockhill Township.
In 1993, Hockman purchased the Hockman Property, including the
garage. Hockman was given a Certificate of Occupancy from East
Rockhill Township for the property. At the time of closing,
Hockman was given the “Plot Plan[,]” which showed that the
existing garage was not encroaching on the Hursh Property. The
Plot Plan is a drawing of the Hockman Property that shows the
structures on the property[,] as well as a depiction of the property
line between the Hockman Property and the Hursh Property.
Relying on the Plot Plan, Hockman obtained permits from East
Rockhill Township and made an addition to the garage in 1993.[2]
In 1997, Hockman obtained another permit and made another
addition to the garage.[3] In 1998, Hursh and Wrigley had the
Hursh Property surveyed where they discovered that Hockman’s
garage encroached nine (9) feet onto [their p]roperty. When
Hockman became aware of the encroachment was disputed at
trial. This [c]ourt determined that [he] became aware of the
encroachment in April or May of 2014.
Trial Court Opinion (“TCO”), 8/7/20, at 1-3 (citations to record omitted).
Hockman filed this action to quiet title to the Disputed Property. After
a non-jury trial, the trial court entered the following additional findings of fact:
[Hockman] testified on his own behalf[. T]his [c]ourt finds his
testimony to be credible. [He] testified that when he purchased
the home, he relied on the Plot Plan and Certificate of Occupancy,
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2 Hockman built a “single bay [and] attached it to the building” on the “upper
side” of the garage, which he used for his “work truck.” N.T. Trial, 9/9/19, at
22. See also id. at 8 (noting that the bay, or “second garage” as referred to
by Appellants, was added on to the “left side” of the original garage).
3 Hockman “built a small shed on the lower end” or “right side” of the garage,
which Appellants refer to as the “third garage.” Id. at 8, 22. He explained:
“I lined up the back of the garage with the addition on the upper side. And I
lined up the back of the shed with the back of the garage also. All of them
are in line.” Id. at 45.
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which gave him no reason to believe the garage was not part of
the Hockman Property.[4] In April or May of 2014, Hockman was
told by Hursh that his garage encroached nine (9) feet onto the
Hursh Property. Hursh told Hockman that the garage would have
to be removed. Upon learning this information, Hockman
immediately sought legal advice.
[Hockman] presented Brian Wallace as an expert witness[;]
however[,] the [c]ourt held that only his testimony would be
considered[] and his [e]xpert [r]eport would not be admitted as
evidence. Wallace testified to the monetary impact the loss of the
Disputed Property would have on each property. [He] testified
that the Hockman Property would lose approximately One
Hundred Thousand Dollars ($100,000.00) if the garage was
removed, and the Hursh Property would lose only de minimis
value.
[Hursh] testified on her own behalf[. T]he [c]ourt did not find her
testimony credible. [She] testified that her husband, Wrigley, met
with and informed Hockman that the garage was encroaching on
the Hursh Property and that Hockman could leave his garage up
for the time being. Hursh was not present at this meeting.
Hockman testified that the 1998 meeting between Hockman and
Wrigley never occurred. This testimony is supported by the fact
that Hockman did not seek legal counsel in 1998, whereas he
sought legal counsel immediately upon being informed of the
encroachment in 2014. Further, no contemporaneous notes or
record of the meeting have been produced to indicate that the
meeting occurred. The [c]ourt finds that no meeting occurred
between Hockman and Wrigley where Hockman was given
temporary permission to keep his garage standing[,] in light of
the encroachment.
Findings of Fact, 2/6/20, at 4-5 (paragraph numbers and some paragraph
breaks omitted). Based on the foregoing evidence, the trial court issued an
order dated January 31, 2020, declaring that Hockman shall acquire title to
the Disputed Property by adverse possession and barring Appellants from
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4Hockman testified that he believed the property line was “15 feet past the
back of the garage.” Id. at 40.
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asserting any claims to the Disputed Property. Appellants filed a post-trial
motion, which was denied on June 22, 2020.
On July 8, 2020, Appellants filed a notice of appeal at 1293 EDA 2020,
followed by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. By per curiam order dated July 22, 2020, this
Court notified Appellants that their appeal was premature, as an appeal lies
from the entry of judgment, not from an order denying a post-trial motion,5
and directed Appellants to praecipe the trial court prothonotary to enter
judgment on the January 31, 2020 decision. Counsel for Appellants praeciped
the court accordingly. Judgment was entered in favor of Hockman and against
Hursh on July 24, 2020, and amended on August 4, 2020, for possession of
the Disputed Property and to bar Hursh from asserting any claims to the
Disputed Property. Similarly, judgment for adverse possession was entered
on July 31, 2020, in favor of Hockman and against the Wrigley Trust.6 On
September 4, 2020, Appellants filed a second notice of appeal at 1589 EDA
2020, “prophylactically,” in response to Hockman’s motion to quash. We
denied the application to quash on September 10, 2020, and by per curiam
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5On July 31, 2020, Hockman filed an application to quash the appeal at 1293
EDA 2020 on the same grounds.
6 We note our displeasure with Appellants’ entering multiple judgments,
instead of a judgment on the January 31, 2020 decision of the trial court, as
we directed them to do in our per curiam order dated July 22, 2020.
Nevertheless, under the specific circumstances in this case and in keeping with
the spirit of Johnston the Florist, we “regard as done that which ought to
have been done.” See Johnston the Florist, 657 A.2d at 514-15 (citation
omitted).
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order dated October 14, 2020, we consolidated the two appeals at 1293 EDA
2020 and 1589 EDA 2020. We now quash the appeal at 1589 EDA 2020 as
duplicative.
Herein, Appellants present the following issues for our review:
A. Whether the trial court committed an error of law and an abuse
of discretion when it found that Hockman had proven with the
required credible, definitive, and clear evidence that his
possession of the area of land covered by and adjacent to the
second and third garages was actual, continuous, exclusive,
visible, notorious, distinct, and hostile for 21 years?
B. Whether the trial court committed an error of law and an abuse
of discretion when it found Hockman’s testimony credible?
C. Whether the trial court committed an error of law and an abuse
of discretion when it found that Hockman could tack the time
his predecessor-in-title allegedly occupied the Disputed
Property onto his claim?
Appellants’ Brief at 4 (unnecessary capitalization and suggested answers
omitted).
We apply the following standard of review to a non-jury trial verdict:
Our appellate role in cases arising from non[-]jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of the jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
However, [where] the issue … concerns a question of law, our
scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to facts of the case. The trial court, as the finder
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of fact, is free to believe all, part or none of the evidence
presented. Issues of credibility and conflicts in evidence are for
the trial court to resolve; this Court is not permitted to reexamine
the weight and credibility determination or substitute our
judgment for that of the fact finder.
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d
1188, 1191-92 (Pa. Super. 2018) (internal citations and quotation marks
omitted).
Preliminarily, we note:
Adverse possession is an extraordinary doctrine which permits one
to achieve ownership of another’s property by operation of law; it
is dependent upon possession for a set period of time and
authorized by statute. See 68 P.S. §§ 81-88 (claim by adverse
possession). One who claims title by adverse possession must
prove actual, continuous, exclusive, visible, notorious, distinct[,]
and hostile possession of the land for twenty-one years.
Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001)
(citations omitted). Each of these elements must exist; otherwise,
the possession will not confer title. Id.Weible v. Wells, 156 A.3d 1220, 1224 (Pa. Super. 2017).
This Court previously provided an extensive summary of the substantive
law regarding the elements of adverse possession:
“An adverse possessor must intend to hold the land for himself,
and that intention must be made manifest by his acts….” Klos[
v. Molenda], … 513 A.2d [490,] 492 [(Pa. Super. 1986)]
(citations and quotations omitted).
Broadly speaking, “actual possession” of land is dominion over the
land; it is not equivalent to occupancy. Reed v. Wolyniec, … 471
A.2d 80 ([Pa. Super.] 1983); Burns v. Mitchell, … 381 A.2d 487([Pa. Super.] 1977) (en banc) (plaintiff who had occupied
defendant’s land and maintained lawn up to fence for more than
21 years established title by adverse possession); C.J.S., Adverse
Possession §§ 30, 42. There is no fixed rule, however, by which
the actual possession of real property by an adverse claimant may
be determined in all cases. 3 Am.Jur.2d § 18, at 109. The
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determination of what constitutes actual possession of property
for purposes of adverse possession depends on the facts of each
case, and to a large extent on the character of the premises. Id.
The words “visible and notorious possession,” as applied to the
adverse holding of land by a party without color of title, mean that
the claim of ownership must be evidenced by conduct sufficient to
place a reasonable person on notice that his or her land is being
held by the claimant as his own. Sterner v. Freed, … 570 A.2d
1079 ([Pa. Super.] 1990) (plaintiff’s use of defendant’s driveway
notorious for 26 year period and therefore sufficient to establish
prescriptive easement); 3 Am.Jur.3d § 69, at 165-166.
To constitute distinct and exclusive possession for purposes of
establishing title to real property by adverse possession, the
claimant’s possession need not be absolutely exclusive. Reed,
supra. Rather, it need only be a type of possession which would
characterize an owner’s use. For example, in Reed, the appellees,
Robert and Audrey Reed, asserted title by adverse possession to
a lot adjacent to their residence. The Reeds had maintained the
lot by cutting the lawn and by planting and maintaining thereon
various shrubbery and flowering plants. In affirming the trial
court’s determination that the Reeds had established title to the
lot by adverse possession, Judge Wieand, writing for a unanimous
court, opined:
Thus, the exclusive character of [the] appellees’ [(the
Reeds)] possession was not destroyed because other
persons occasionally passed unobserved over the lot. It was
enough that [the] appellees’ possession was to the general
exclusion of others and that they remonstrated with persons
who attempted, without permission, to use the land.
Reed, … 471 A.2d at 84 (citations omitted); see also Pistner
Bros., Inc. v. Agheli, … 518 A.2d 838 ([Pa. Super.] 1986)
(subdivision lot owner’s action in planting grass on abutting,
undedicated street held insufficient to establish interference with
use of street for purposes of adverse possession where others able
to use street for its intended purpose); Lyons v. Andrews, … 313
A.2d 313 ([Pa. Super.] 1973).
The word “hostile,” as an element of adverse possession[,] does
not mean “ill will” or “hostility,” but implies an assertion of
ownership rights adverse to that of the true owner and all others.
Schlagel v. Lombardi, … 486 A.2d 491 ([Pa. Super.] 1984)
(citing Vlachos v. Witherow, … 118 A.2d 174 ([Pa.] 1955)); see
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also Jones v. Porter, 3 P.&W. 132 (1831) (party who attempted
to establish adverse possession was not required to show that he
had entered the land and held it in direct hostility to other
claimants). Simply stated, the possession must be “such as to
import, a denial of the owner’s title.” 3 Am.Jur.2d § 50, at 143-
[]44…. Furthermore, if all of the elements of adverse possession
are established, the element of hostility is implied. Schlagel,
supra.
Finally, in order for adverse possession to ripen into title, it is
necessary that such possession had been continuous and
uninterrupted for the full statutory period. Tioga Coal[ Co. v.
Supermarkets General Corp., 433 A.2d 483 (Pa. Super.
1981)]; Elias v. Scott, … 64 A.2d 508 ([Pa. Super.] 1949). In
this Commonwealth, as in most jurisdictions, the statutory period
is twenty-one years. See 42 Pa.C.S. § 5530(a)(1) …; Conneaut
Lake[ Park Inc. v. Klingersmith, 66 A.2d 828, 829 (Pa. 1949)];
Klos, supra. The law does not require that the claimant remain
continuously on the land and perform acts of ownership from day
to day. See Reed, supra (single twenty-four hour attempt by
record owner to interrupt claimant’s possession did not destroy
continuity of adverse possession). A temporary break or
interruption, not of unreasonable duration, does not destroy the
continuity of the adverse claimant’s possession. Id.
Brennan v. Manchester Crossings, Inc., 708 A.2d 815 (Pa. Super. 1998)
(quoting Glenn v. Shuey, 595 A.2d 606 (Pa. Super. 1991), abrogated on
other grounds Zeglin v. Gahagen, 812 A.2d 558 (Pa. 2002)).
Here, Appellants attack the trial court’s finding of adverse possession,
stating that Hockman failed to meet his burden of proving any of the requisite
elements, e.g., “actual, continuous, exclusive, visible, notorious, distinct[,]
and hostile possession of the land for twenty-one years.” They claim that the
evidence produced by Hockman at trial was “too nebulous and vague” and
that it failed to meet the heavy burden of “credible, clear, and definitive
evidence.” See Appellants’ Brief at 16-17, 29. For instance, Appellants aver
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that Hockman never gave a definitive description of the Disputed Property,
and they assert that the evidence he produced regarding various activities he
performed on the Disputed Property, e.g., lawn mowing, burying his dog,
planting and maintaining trees, and placing a dumpster pad, was too vague
as to when he began performing these activities and as to precisely where on
the property these activities occurred. Id. at 17-18. Hence, they dispute the
finding that Hockman is entitled to ownership of the entirety of the Disputed
Property. Id. at 17. See also id. at 27 (“At best, this evidence would prove
Hockman has adverse possession over the small strip of land where the trees
are planted and over … the plot of ground his dog’s grave is in. [It] does not
provide proof that he has obtained dominion and control over this entire
portion of the Disputed Property for the necessary 21 years.”). Appellants’
claims are meritless.
First, we note that Appellants include little legal analysis in support of
their claims. Instead, they primarily endeavor to dispute the trial court’s
findings of fact, pointing to contradictory and self-serving testimony. See id.
at 17-29. They are essentially asking this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder, which we cannot and will
not do. See Gamesa Energy USA, 181 A.3d at 1192. See also Gutteridge
v. J3 Energy Group, Inc., 165 A.3d 908, 914 (Pa. Super. 2017) (stating that
this Court will respect a trial court’s findings with regard to the credibility and
weight of the evidence “unless the appellant can show that the court’s
determination was manifestly erroneous, arbitrary and capricious[,] or
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flagrantly contrary to the evidence”) (quoting J.J. DeLuca Co. v. Toll Naval
Associates, 56 A.3d 402, 410 (Pa. Super. 2012)). “The test is not whether
this Court would have reached the same result on the evidence presented[]
but[,] rather, after due consideration of the evidence the trial court found
credible, whether the trial court could have reasonably reached its conclusion.”
Gutteridge, 165 A.3d at 916. We deem the trial court’s finding of adverse
possession in the instant matter to be clearly supported by the evidence that
the trial court found credible.7
The trial court opined:
To prove adverse possession Hockman “must prove that he had
actual, continuous, exclusive, visible, notorious, distinct, and
hostile possession of the land for twenty[-]one years.”
[Conneaut Lake, 66 A.2d at 829.] Hockman established that he
met these elements. First, since the day [he] purchased the
Hockman Property, [Hockman] has been in actual use of the
garage.[8] [He] has used the garage continuously since 1993.[9]
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7The trial court found Hockman’s testimony to be credible. See Findings of
Fact at 4 ¶16.
8 Hockman testified: “As soon as I bought the property, I added on a dumpster
pad to the lower end of the garage. I had to get my dumpster off my other
property…. I … [g]ot a backhoe in to dig holes and plant[ed] pine trees along
the edge of the property that I was told … where the property line was [sic].”
N.T. Trial at 22. See also id. at 63 (“[The trees] were planted in spring of
‘93[,] right after I bought the house.”); id. at 82-83 (Hockman’s noting that
he was working on the property before it went to settlement, with the seller’s
permission; once he purchased the property, he moved in and built the
dumpster pad next to the garage within 30 days).
9Hockman indicated that he used the garages for his business, his truck, his
car, an antique truck that he is working on, gardening equipment, tools, etc.
Id. at 57.
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[His] use has been visible, as it was clear and obvious to Hursh
that the garage was being used by Hockman. This includes
Hursh’s knowledge that Hockman expanded and repaired the
garage. Hockman’s use of the garage was exclusive, as he was
the only person who used the garage[;] Hursh never set foot in
the garage[;] and Hockman maintained the grass and performed
other landscaping duties for the parcel of land next to the
garage.[10] Hockman’s use of the land was hostile, because [he]
acted as if he were the owner of the land.[11] This is illustrated by
the fact that Hockman believed he was the owner of the Disputed
Property until spring [of] 2014. Hockman has met the statutory
period of twenty[-]one (21) years required for adverse
possession. Hockman purchased the home in February of 1993
and was made aware of the encroachment in April or May of 2014,
which exceeds the twenty[-]one (21) year statutory requirement.
TCO at 3-4 (footnotes omitted). After careful review, we discern no abuse of
discretion or error of law.
To the extent that Appellants aver Hockman failed to establish his
continuous use of the non-garage portion of the Disputed Property, the trial
court explained:
The Disputed Property encompasses the garage and the area next
to the garage, which is covered with grass and marked by trees.
Hockman’s testimony established his use of this area. Hockman
maintained the grass, maintained the trees, and even buried his
dog on the Disputed Property. Hockman acted as if he were the
owner of this plot of land[] and believed that he was. There was
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10 Hockman owns a tractor, which he keeps in the shed. He stated, “I have
to go down that strip [of grass] to back the tractor out of the shed.” Id. at
57. In addition to mowing the grass, he maintained the pine trees, cleaned
up limbs when they fell, and paid to have two of the trees cut up and hauled
away after they fell over. Id. at 63.
11 Hockman stated that he used the grassy, lower end of the property “for
recreation[,]” and that he “buried [his] dog down there, planted trees,
maintained the trees, sprayed for bugs…, and basically maintained the yard.”
Id.
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sufficient evidence to support [the c]ourt’s finding that Hockman
adversely possessed not only the garage, but the parcel of land
directly in line with the garage.
Id. at 6-7. See also Brennan, 708 A.2d at 821 (concluding the appellants
established adverse possession where they maintained the tract of land
adjacent to their property, seeded the area, fertilized the grass, mowed the
grass, raked leaves, and used the tract for recreational activities); Klos, 513
A.2d at 492 (“The use of land for lawn purposes and the continuous
maintenance thereof in connection with a residence … are sufficient to
establish adverse possession.”); Reed, 471 A.2d at 85 (determining that
maintaining the lawn, planting flowers and shrubs, erecting a bird house, and
using the land for recreational purposes for more than twenty-one years was
sufficient to establish adverse possession claim).
Additionally, Appellants attempt to distinguish the “second” and “third”
garages from the original garage, asserting that they “take up additional land
to the north and south of the first garage,” and that Hockman should have
been required to prove the elements of adverse possession as to all three
structures and the land on which they are situated. Appellants’ Brief at 21.
While they do not dispute that the original garage was in place at the time
Hockman purchased the Hockman Property in 1993 and, hence, meets the 21-
year statutory period, Appellants argue that he has failed to prove the 21-
year period has been met in regards to the second and third garages.
The trial court astutely responded:
This argument is flawed. The second and third garages are
additions to the original garage. Hockman twice got permits from
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East Rockhill Township to make additions and build additional
structures around his garage. The second and third garages do
not encroach any further onto Hursh’s property. They take up the
same parcel of land that Hockman had been adversely possessing
since he took ownership of the property.[12] Hockman has met the
requirements to adversely possess the land[. T]he fact that he
made improvements upon that land has no impact on his right to
gain title to the land by adverse possession.
TCO at 7 (emphasis added). We agree.
To the extent that Appellants argue that the statutory period “did not
automatically start as soon as [Hockman] purchased the Hockman Property”
but, rather, “commenced at the time [he] started conducting activities upon
the Disputed Property sufficient to form the basis of his claim of adverse
possession[,]” Appellants’ Brief at 22, the trial court added:
Hockman moved onto the Hockman Property in February 1993.
Upon taking possession of the Hockman Property, he immediately
took exclusive possession of the garage and the rest of the
Disputed Property. [Appellants] aver[] that Hockman did not
establish when his use of the garage began. This is untrue, as
Hockman clearly stated that he moved into the property in
February 1993, [and] he immediately began using the garage.
Therefore, the statutory period for Hockman’s adverse possession
began in February 1993.
TCO at 5 (emphasis added). Based on the foregoing, Appellants fail to
convince us that we should disturb the trial court’s ruling.
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12 The Disputed Property is identified herein as the approximately 9-foot by
200-foot area of land which consists of the original garage and parcel of grass
in line with the back of the garage that encroaches on the Hursh Property.
See TCO at 2. The record clearly reflects that the second and third garages
were built on this same parcel of land. See N.T. Trial at 45 (noting that the
back of the second and third garages are lined up with the back of the original
garage).
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In their second issue, Appellants claim that the trial court’s finding of
Hockman’s testimony as credible was “arbitrary and capricious.” Appellants’
Brief at 14. They argue that “none of Hockman’s testimony should be
considered credible, “because he gave false testimony on the stand concerning
a core element of his claim.” Id. at 29. Specifically, Appellants contend that
his testimony “concerning the placement of the dumpster pad and dumpster
prior to the construction of the third garage is contradicted by his own
photographic and other documentary evidence.” Id. at 14. Their entire
credibility claim is based on their assertion regarding this alleged false
testimony.
We observe that the only complaint regarding the trial court’s credibility
finding relating to Hockman’s testimony included in Appellants’ Rule 1925(b)
concise statement is “concerning when [he] first became aware of the
disagreement over the ownership of the Disputed Property and … of the
location of the garages on the Hursh Property.” Id., Appendix C, at 3
(emphasis added). Their concise statement is void of any reference to the
credibility of Hockman’s testimony as to the location of the dumpster pad.
Consequently, Appellants’ credibility argument is waived. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”);
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 225 (Pa. Super. 2014) (“[I]n determining whether an appellant
has waived his issues on appeal based on non-compliance with Pa.R.A.P.
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1925, it is the trial court’s order that triggers an appellant’s obligation….
[T]herefore, we look first to the language of that order.”) (internal quotation
marks and citations omitted); Trial Court Order, 7/7/20, at 1 (unnumbered
page) (warning Appellants that “[a]ny issue not properly included in the
concise statement shall be deemed waived”).
Finally, Appellants claim that the trial court erred in determining that
tacking was proper in this case. Appellants’ Brief at 15. “Tacking is the joining
of consecutive periods of possession by different persons to treat the periods
as one continuous period.” Id. at 35 (citing Black’s Law Dictionary (11th ed.
2019)). Appellants aver that the deed transferring the Hockman Property
from the Webers to Hockman contains no reference to the Disputed Property
and, thus, did not create any privity between these two parties concerning
said property. They conclude that Hockman, therefore, could not tack his
adverse possession claim onto the Webers’ alleged claim. Id. (citing Baylor
v. Soska, 658 A.2d 743 (Pa. 1995) (holding that the only method by which
an adverse possessor may convey title asserted by adverse possession to
allow tacking is to describe in the instrument of conveyance the realty
intended to be conveyed)). No relief is due on this claim.
Having already concluded that the trial court properly found Hockman
independently acquired the Disputed Property via adverse possession, we
deem the issue regarding tacking to be moot. See TCO at 4 (“Hockman met
the twenty[-]one (21) year period for adverse possession without tacking on
the previous property owner’s possession.”). Nevertheless, even if tacking
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was needed to establish adverse possession, we would uphold the trial court’s
finding that it would apply in this case.
As the trial court so aptly explained:
To successfully tack on one’s claim of adverse possession to
another, the party must prove that “each predecessor must have
claimed title to the property in dispute, and in transferring to his
successors must have purported to include it.” [Glenn v. Shuey,
595 A.2d 606, 613 (Pa. Super. 1991) (citation omitted).]
Here, when Weber, the previous owner of the Hockman Property
and the person who built the garage, sold the Hockman Property
to Hockman, he intended to convey the entire property, including
the garage and the rest of the Disputed Property. Weber gave
Hockman a Plot Plan, which was a drawing of the land, structures,
and boundaries. This Plot Plan included the garage and showed
the garage as being on the Hockman Property.[13] This meets the
requirements for tacking[.] Weber claimed title to the Disputed
Property and intended to convey the Disputed Property to
Hockman upon the sale of the property.
Id. at 5. We further note that Appellants’ reliance on Baylor overlooks our
Supreme Court’s decision in Zeglin, supra, in which it recognized that a
property owner can tack prior periods of ownership despite the lack of a
specific stated interest in the deed. See Zeglin, 812 A.2d at 566 (“[T]acking
is permitted … upon sufficient and credible proof of delivery of possession of
land not within (but contiguous to) property described by deed of conveyance,
which was previously claimed and occupied by the grantor and is taken by the
grantee as successor in such interest.”).
____________________________________________
13Moreover, we note that the deed transferring the Hockman Property from
Weber to Hockman includes language specifying that the conveyance includes
the land described, “[t]ogether with all and singular the buildings [and]
improvements….” Exhibit D-5.
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Accordingly, we affirm the judgments entered in favor of Hockman and
against Appellants for adverse possession of the Disputed Property.
Appeal at 1589 EDA 2020 quashed. Judgments reflecting the January
31, 2020 trial court decision and challenged in appeal at 1293 EDA 2020
affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/21
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